Software Pluralism

Software Pluralism

Copyright v. Patent: A Primer on Copyright and Patent Protection for Software

Abstract

Both copyright law and patent law are applicable to the protection of software. One form of protection is arguably better than the other and there are vehement debates on the topic. This brief overview will provide the broad arguments each side offers as to the respective superiority of intellectual property protection under patent and copyright laws and demonstrate that new technologies are challenging bright line separations between the two forms of protection.

Copyright was once regarded as not being relevant to the sale of products other than those with a creative element, such as books, art and gramophone records. Today, however, in addition to these traditional areas, copyright is vital in preventing piracy of computer software and preventing copying of other related works. Software developers first turned to statutory protection under the Copyright Act since the writing code was similar to other forms of writing; computer languages were regarded as a different form of language. The U.S. Copyright Act (17 USC §§ 100 et. seq.) provides copyright protection "for original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." The Copyright Act gives a copyright owner exclusive rights over the reproduction, preparation of derivative works, distribution and public performance and display of the copyrighted work. When a computer program is written out on a piece of paper, it is relatively clear that copyright will exist in that work upon its creation, so long as the traditional copyright requirements are met. The copyright protection therein will function the same way as it would for any other literary work. And it has been clear since the early 1980s that computer programs in general are copyrightable; a court rejected the argument that operating systems are not copyrightable because they are processes, systems or methods of operation. (See, e.g., Apple Computer v. Franklin Computer, 714 F.2d 1240 (3d Cir. 1983)).

The first problem the courts have had to grapple with is whether copyright law could be extended to cover computer programs that exist in magnetic or electric form or as specific circuits etched onto a silicon chip. However, with the advent and proliferation of microcomputers and software in the 1970s, copyright protection was used and has been used as the principal mode of protection for software until very recently. Computer software, by its very nature as a written work intended to serve utilitarian purposes, defies neat classification within the current intellectual property system. The difficulty in classifying objects as artistic or utilitarian is not new to software; however, objects such as lamps, mannequins and bicycle stands have been contested as either artistic or utilitarian.

A certain section of the Copyright Act (§109(a)) prohibits the leasing or other similar transfer of copies of a computer program for direct or indirect commercial gain. It does not appear necessary for the program to be embodied in anything tangible for the provision to apply so that, for example, transmission of a program over the Internet would be covered. It has, however, been held (Adobe Systems Inc. v. One Stop Micro Inc., 53 U.S.P.Q.2d 2003 (D.N. Cal. 2000)) that Section 109(a) does not apply where the lawful possessor of the copy in question is not the owner but merely a licensee. The Ninth Circuit decided a case regarding the display right in 2002 (Kelly v. Arriba Soft Corp., 61 U.S.P.Q.2d 1564 (9th Cir. 2002)); it held that infringement exists through any unauthorized display of copyrighted works on an Internet site, even if this is effected by importing the works direct from the copyright owners site without any intermediary copying. Several other fact-specific cases have been decided regarding whether and to what extent various portions of a software package may be copyrightable. Some important cases include AT&T Corp. v. Excel Communications Inc., 50 U.S.P.Q.2d 1447 (CAFC 1999), and Lotus Development Corp. v. Borland International Inc., 34 U.S.P.Q.2d 1014 (1st Cir. 1995), aff’d 116 S. Ct 804 (1996).

In broad strokes, copyright protection gives a copyright owner a bundle of specific rights that are somewhat dependent on the type of work involved. Case law has often classified computer software as falling within the statutory definition of copyrightable subject matter in the category of literary works, as opposed to any other work of creative origin, although some manifestations of software may be best protected as audio-visual works, calling upon other sections of the Copyright Act.

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Patent

Many computer-related inventions are patentable. Patent protection, however, cannot be obtained for inventions in this field that do not meet the current test for patentable subject matter and, in order to be patentable at all, a software program must meet the patent test of nonobviousness. In the 1970’s, case law in the patent field was showing dubiousness as to whether computer programs could constitute patentable inventions. Under the U.S. Patent Act, 35 U.S.C. §§101 et seq., patents may be granted for any new and useful process, machine, manufacture or composition of matter. The broad definition of subject matter in the United States has enabled the country to widen the scope of subject matter for which patent protection may be obtained; the U.S. has therefore been in the forefront in developing the criteria for patentability of computer-related inventions.

Over time, case law refined the contours of patentability. Patent protection has been denied, for example, for inventions in the form of certain algorithms and inventions relating to methods of doing business. See, e.g., the Freeman-Walter-Abele test for algorithms (In re Abele, 214 U.S.P.Q. 682 (CCPA 1982); In re Walter, 205 U.S.P.Q. 397 (CCPA 1980); In re Freeman, 197 U.S.P.Q. 464 (CCPA 1978); and Arrythmia Research Technology Inc. v. Carazonix, 22 U.S.P.Q.2d 1033 (CFAC 1992)). In 1995, the United States Patent and Trademark Office (USPTO) issued a legal analysis in support of its view on the patentability of computer-related inventions generally following decisions such as In re Alappat (31 U.S.P.Q.2d 1545 (CAFC 1994)) and In re Lowry (32 U.S.P.Q.2d 1031 (CAFC 1994)), which, taken together, overturned much of the USPTO’s prior policies. According to the PTO’s new draft guidelines, one must first determine whether an invention is useful in the technological arts having a 'real world’ value and not a mere concept. Within this framework, methods of doing business should be treated like any other process. According to the USPTO, the only types of subject matter that are "clearly non-statutory" are: data structures or programs per se; compilations or arrangements of nonfunctional information or a known machine-readable storage medium encoded with such information; or natural phenomena, such as electricity and magnetism.

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Conclusion

Over the past few decades during which software development has become more and more sophisticated, courts have pointed out the difference in purpose between copyright and patent laws. The purpose of copyright is to protect particular expressions of an idea not the idea itself. Broader protection for software, as provided by patent law, must meet the standards of novelty and nonobviousness in order for that type of intellectual property protection to apply. Both copyright and patent have a place in protecting software, depending on the particular format of an application, its usage, presentation, and an array of other factors that have traditionally differentiated intellectual property between the two forms of protection. In the event that the USPTO tightens its examination process in granting patents to applications relating to software and business methods, it may become more difficult to obtain patents in this field and the focus may then swing back to copyright protection. From an ideological standpoint, however, both patent and copyright laws have the potential to offer some degree of protection to the various components that comprise the entirety of a software program.

References

Copyright

Patent

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